General Statutory Remedies against Administrative Action

Introduction

Hello viewers, I am Dr. Amit Kumar. Today, the topic of my lecture is General Statutory
Remedies against Administrative Action -Administrative law is that branch of law which deals
with powers, functions and responsibilities of various organs of the state. Ivor Jennings defined
administrative law as the law relating to administration. It determines the organs, powers and
duties of administrative authorities. Administrative law is the by-product of ever-increasing
functions of the Governments. The modern state is, therefore, striving to be a welfare state. It has
taken the task to improve the social and economic condition of its people. The Administrative
authorities are vested with vast discretionary powers in modern democratic countries. The
exercise of those powers often becomes prejudiced in the absence of specific guidelines etc. The
need for a control of the discretionary powers is essential to ensure that “Rule of Law” exists in
all governmental actions. The judicial review of administrative actions in the form of writ
jurisdiction is to ensure that the decisions taken by the authorities are legal, rational, proper, just,
fair and reasonable.

General Statutory Remedies against Administrative Action

A remedy given under a statute authority is called Statutory Remedy. Statutory remedies are not
equivalent to constitutional remedies. As a substantive remedy, relief, which could not be
achieved through a writ, could be provided i.e., enforcement of payment of money. Many of the
remedies of private law, such as a civil suit for seeking damages, an injunction or a declaration
are extended to public law as well.

Statutory remedies may be divided into following:

⮚ Civil Remedies (General and Specific)

⮚ Criminal Remedies. (Punishments, monetary compensation)

⮚ General Statutory Civil Remedies

Ordinary remedies can be obtained against the administration by the aggrieved person in the
ordinary courts of the land in exercise of the power under the statutory law of the land, to control
administrative action. The following remedies are available to the person aggrieved by the
administrative action:

⮚ Injunctions (Perpetual/Mandatory, Temporary)

⮚ Declarations

⮚ Specific Performance

⮚ Restitution

⮚ Recovery of Legal Costs i.e., Advocate Fee, Court Expenses etc.,

⮚ Recovery of Possession of Property

⮚ Damages- Liquidated, Unliquidated & Statutory etc. (Including Nominal,

Substantial, Penal or Exemplary etc.)

Definition of Injunction

An injunction is an order of a court addressed to a party to proceedings before it requiring him to

refrain from doing or to do as a particular act.

Injunction is an equitable remedy, by which one, a judicial process has invaded, or is threatening
to invade the rights, legal or equitable, of another is refrained from continuing or commencing
such wrongful act. Injunction is a coercive remedy but not a rigid one and can be tailored to suit
the circumstances of each individual case. Courts can use injunctions to review all action:
judicial, quasi-judicial, administrative, ministerial or discretionary.

Types of Injunctions: Injunction is divided into two categories:

⮚ Prohibitory Injunction

⮚ Mandatory Injunction
Prohibitory Injunction

Prohibitory Injunction forbids a defendant to do a wrongful act which would be an infringement

of some right of the plaintiff, legal or equitable. It may further be divided into following kinds:

⮚ Temporary Injunction

⮚ Perpetual Injunction

Temporary Injunction

Temporary Injunction is granted as an interim measure which is preventive in character. It is

granted on an application of the plaintiff to preserve status quo until the case is heard and
decided. Section 37 of the Specific Relief Act, 1963 which reads as:

“Temporary injunctions are such as to continue until a specified time, or until further order of the
court and they may be granted at any stage of a suit, and are regulated by the Code of Civil
Procedure, 1908”.

Temporary injunction is an interim remedy that is raised to reserve the subject matter in its
existing condition and which may be granted on an interlocutory application at any stage of the
suit. Its purpose is to prevent the suspension of the plaintiff’s rights. Section 94 of the CPC
provides the supplemental proceeding, wherein Section 94 (c) and (e) of Code of Civil
Procedure, the Court may grant a temporary injunction or make such other interlocutory orders.

Further the ad-interim injunction is granted during the pendency of the application and operates
till the disposal of the application. In Ramrameshwari Devi vs. Nirmala Devi and Ors., the
Supreme Court held that the Court should be extremely careful and cautious while granting
ex-parte ad interim injunctions or stay orders. Ordinarily a short notice should be issued to the
Defendant/Respondent and only after hearing both the parties concerned Court can pass the
appropriate orders. For the grant of temporary injunction, three conditions are required to be
satisfied:

⮚ Prima Facie Case

 ⮚ Irreparable Injury

⮚ Balance of Inconvenience

In Metropolitan Asylum District v. Hill, the relevant Act empowered the authority to build a
hospital for children for treatment of the small pox. A prohibitory injunction was obtained by the
neighbouring inhabitants on the ground of nuisance. In the case of Administrator City of Lahore
v. Abdul Majid, the plaintiff submitted a building plan to the municipal authorities for the
necessary permission. Permission initially granted but thereafter revoked while it was granted in
respect of the other buildings. The order of mandatory injunction was issued against the
municipal authorities. An injunction is a discretionary remedy but it must be exercised
judiciously. The plaintiff must be “an aggrieved person.” Since this is an equitable relief, it may
not be granted if the conduct of the plaintiff disentitles him from the assistance of the court or
alternative remedy is available to the plaintiff.

Perpetual Injunction

Perpetual Injunction is granted on the final disposal of the case on merits to prevent the
infringement of those rights to which the plaintiff is entitled permanently. Sections 36 -42 of the
Specific Relief Act, 1963 deals with permanent injunction. Section 38 of Specific Relief Act
pertains to perpetual injunction. In case of threat to the plaintiff’s right to, or enjoyment of
property, by the defendant, the court may grant perpetual injunction in the following
circumstances:

⮚ Where the defendant is a trustee of the property for the plaintiff

⮚ Where there exists no standard for ascertaining the actual damage caused, or likely
to be

⮚ caused, by the invasion;

⮚ Where the invasion is such that compensation in money would not afford adequate
relief

⮚ Where the injunction is necessary to prevent multiplicity of judicial proceedings

Mandatory Injunction 

Mandatory Injunction not only forbids a person from continuing with a wrong action but also
imposes a duty on him to do a positive act. The court may, at its discretion, grant the injunction
under section 39 of the Specific Relief Act as a final decision.

Under Section 39, the court may grant a mandatory injunction as a final decision on a case to
prevent a person from continuing with a wrong action as also to compel him to do a positive act,
necessary to remedy the harm already done. Therefore, an improvement authority can be issued a
mandatory injunction not only to restrain the construction of a building, if it interferes with the
easementary rights of the plaintiff, but also to pull down the construction already made in
contravention thereof.

The court under Section 41 may grant an injunction and it is provided in clause (e) of Section 41
that an injunction cannot be granted to prevent the breach of a contract, but the performance of
which could not be specifically enforced. ‘Therefore, where there is an affirmative agreement to
do a certain act, coupled with a negative agreement, express or implied, not to do a certain act,
and the court cannot compel the specific performance of the affirmative agreement, it can still
grant an injunction to perform the negative agreement. Suppose a contract to play the piano in
B’s orchestra in a particular hotel for the whole summer season and not to play the piano with
any other orchestra elsewhere. B cannot obtain specific performance of the contract to play the
piano in his orchestra by an affirmative injunction because the contract of personal service is not
specifically enforceable. B is still entitled to get an injunction restraining A from playing the
piano at any other hotel.

Who is entitled to seek Injunction? 

Injunction can be granted on the petition of a person who has a personal interest in the matter.
This is interpreted to mean that either there must be an existing obligation in favour of the
applicant, or the person has suffered some injury. Does this mean that no person can enforce a
public right which he shares with everybody else? In such situations, Section 91, CPC provides
that any two persons with the consent of the advocate General or by leave of the court may file a
suit for the removal of a public nuisance, whether or not they have suffered special damage. In
this manner a person can, through injunction, enforce his public right against any administrative
authority for doing or refraining from doing certain acts which cause any injury, damages or
annoyance to the public.

Injunction is an effective method of judicial control of administrative action where the authority
has acted without jurisdiction, or has abused its jurisdiction, or has violated the principles of
natural justice. Injunction is also an effective instrument in controlling the exercise of
administrative discretion. Therefore, if the administrative authority has either not exercised its
discretion at all, or has exercised it at the discretion of some other body, or it is arbitrary, or has
been exercised on extraneous considerations, or for an improper purpose, or where its exercise is
mala fide, injunction would lie. Ganga Narain v. Municipal Board, Cawnpore is an illustrative
case on the efficacy of injunctive relief in cases of abuse of discretion by the administrative
authority. In this case, the Kanpur Municipality constructed a market, but because of high rent,
traders shifted to an old market owned by the plaintiff. In order to earn profit for its own market,
the Municipality served a notice to the plaintiff to close down the market as it was a nuisance. In
a suit filed by the plaintiff, the court held that the market was not a nuisance. Thereafter, the
Municipality got the regulation amended and secured for itself the power to close down any
market on the grounds of nuisance. The plaintiff was prosecuted for not removing a nuisance,
i.e., the market. In a suit, the plaintiff claimed the remedy of injunction and declaration on the
ground of abuse of discretion which was granted. In practice, injunction has proved to be a
suitable remedy for the control of administrative action, but it is not frequently resorted to
because people have placed much faith in extraordinary remedies. If the remedy of injunction is
to secure its due place, it is necessary that every person should be allowed to establish his rights
without showing special injury or the consent of the Advocate General.

 In granting relief, courts have consistently taken the view that law must always have precedence
over any consideration of administrative convenience. B. Prabhakar Rao v. State of A.P. is an
illustrative case on this point. In this case, the reduction in retirement age for government
servants from 58 to 55 years had been challenged by those who had been retired under the new
dispensation. However, later on the retirement age was again raised to 58 years. The question
before the court was whether petitioners were entitled to reinstatement with back wages? The
contention of the government was that there would be considerable chaos in the administration if
those already retired were again re-inducted into the service. The court negativated the
contention by holding that “those that have stirred up a hornet’s nest cannot complain of being
stung” thus, it was firmly established that the Constitution must always take precedence over
administrative convenience.

In some countries, a greater use of injunction is being made in public law. In the US and England
even in cases of administrative rule-making, the court examines an application for injunction to
find out if the rule making power has been properly exercised or not. As mentioned earlier,
within the federal jurisdiction in the US, writs have been completely replaced by injunction and
declaration. In England, injunction is freely used against administrative authorities. In Bradbury
v. Enfield London Borough Council, an injunction was granted against the local education
authority on an application by a parent restraining the authority from converting a grammar
school into a comprehensive school in violation of the Education Act, 1944, and the fact that the
parent had no legal right to enforce was not treated as a disqualification.

Declaratory Relief

A declaratory action may be defined as a judicial remedy which conclusively determines the
rights and obligations of public and private persons and authorities without the addition of any
coercive or directory decree.

In the words of Jennings, declaratory action is a symbol of the 20th century conception of law
because it is highly democratic. In an age where more and more an individual’s action is liable to
bring him in conflict with the administration, declaratory action satisfies the need of a simple but
all-embracing method of redress against the administration. Sometimes coercive relief is
unnecessary against public authorities where merely a declaration is enough to keep the authority
within the bounds of legality. In England, under the Crown Procedure Act, 1947 every claim
against the government may be by a declaratory action. Being an ordinary law remedy, it is free
from the technicalities of writs relating to locus standi, choice of remedy, character of
administrative action and the nature of the administrative authority.

The history of declaratory action in India begins with the Act of 1854 by which the provisions of
the Chancery Procedure Act, 1852 relating to the grant of declaratory relief were made
applicable to the Indian Supreme Court in Presidency Towns. At that initial stage, courts
declared the rights of parties as introductory to the directory relief which they ultimately granted.
In 1859, the same provisions found place in Section 19 of the Civil Procedure Code, 1859. In
1877, this declaratory relief was transferred to Section 42 of the Specific Relief Act, 1877 and,
thereafter, to sections 34 and 35 of the specific Relief Act, 1963.

 Conditions for the Grant of Declaratory Relief

⮚ The person must be entitled to a “legal character” or a “right to any property”.

⮚ There must be some danger or detriment to such right or character.

⮚ Plaintiff must seek further relief if he is entitled to it. 

In the state of M.P. v. Mangilal Sharma, the court held that a declaratory decree merely declares
the right of the decree-holder and does not direct anybody to do or refrain from doing any
particular act or thing; hence, a declaratory decree is beyond the purview of execution
proceedings. In this case, the respondent had filed a suit for declaration under Section 34 of the
Specific Relief Act, 1963 that he continues to be in service but did not claim consequential
benefits like arrears of salary, etc. The court granted a declaration but the respondent in
execution proceedings had claimed consequential benefits.

In Veruareddi Ramaraghava Reddy v. Konduru Seshu Reddy, the Supreme Court added a new
dimension to this remedy by allowing a declaration for the enforcement of a public right. In this
case, the petitioner prayed for a declaration to the effect that certain properties belonged to the
deity. Though this claim was not for a legal character or a right to property, the declaration was
given. The remedy is also available to a taxpayer for getting a declaration against a municipality
for misapplication or misappropriation of property. But whether a declaration could be given
regarding the unconstitutionality of a statute is still unclear. If the limitations of “consequential
relief”, “legal character” and “property rights” are eliminated from the precincts of declaratory
relief, it would do the work of certiorari, mandamus, prohibition and quo warranto insofar as
judicial control of administrative action is concerned. Declaration and injunction may be proper
relief in a petition under article 32 of the consideration.
Declaration is a discretionary remedy and may be refused if it would be infructuous, or if an
adequate alternative exists, or on other equitable considerations.

Suit for Damages

Whenever any person has been wronged by the action of an administrative authority, he can file
a suit for damages against such authority. Such a suit is filed in the civil court of first instance
and its procedure is regulated by the CPC.

⮚ Remedies under Contract

⮚ Compensation for Loss or Damage by Breach of Contract

⮚ Liquidated Damages

⮚ Specific Performance

⮚ Cancellation

Conclusion

Statutory remedies conferred by the different statutes for the correction of administrative actions
or discretion vested in them. Administrative action should be based upon sound legal principles.
Here it is important to emphasise that the absence of arbitrary power is the first essential of the
rule of law upon which the whole legal system is based. The decision of administrative
authorities must be based on some principles and rules. If a decision is not taken on the basis of
any principles or rules then such decision is arbitrary and is taken not in accordance with the
Rule of Law.

 No one is supreme to the law. Thus, the statutory remedies provided under the different statutes
operate as a check and keep the administration of the government within the bounds of law.
Statutory remedies are judicial reviews of administrative actions. It restricts policy decisions
which are unreasonable, unfair and against public interest. With this, we bring an end to the
General Statutory Remedies Against Administrative Action. Thank you very much.